The Post-Bhopal and Post-9/11 Transformations in Chemical Emergency Prevention and Response Policy in the United States
Abstract Number B-113
James C. Belke[(] and Deborah Y. Dietrich
United States Environmental Protection Agency
1200 Pennsylvania Avenue (Mail Code 5104A)
Washington, D.C. 20460
Abstract
The United States’ approach to incident prevention and response at hazardous chemical facilities has undergone two major transformations in the last 20 years. The first was triggered by the Bhopal tragedy in 1984, which, along with other less severe incidents in the United States that occurred around the same time, led to major changes within the U.S. chemical industry, and to a series of Federal laws and regulations intended to prevent major chemical accidents, and to mitigate and respond to any that do occur. These laws and regulations include the Emergency Planning and Community Right-to-Know Act of 1986, and the Clean Air Act Amendments of 1990, which authorized both EPA’s Risk Management Program, and OSHA’s Process Safety Management standard. A more recent transformation is currently underway in the wake of the 9/11 attacks on New York and Washington. It involves the advent of various security-related requirements affecting many of the same facilities covered under the existing accident prevention rules, as well as a complete re-evaluation and restructuring of the U.S. system for responding to national emergencies. This paper provides an overview of these transformations and their impacts.
Keywords: Chemical Accidents, Prevention, Response, Terrorism, Regulation
Introduction
Catastrophes can sometimes lead to beneficial transformations. Airline crashes, hurricanes, earthquakes, oil spills, nuclear accidents, toxic chemical releases – in the aftermath of these events, healthy organizations and societies are obligated to reexamine the way things were done, determine what went wrong, and make the necessary changes. For the worldwide chemical industry, it is well acknowledged that the December 1984 toxic chemical disaster in Bhopal, India, sparked such a transformation – a transformation in turn that brought immediate and lasting changes to the U.S. chemical industry, its interaction with local communities, and the nature and extent of its regulatory oversight by all levels of government.
Nearly two decades later, the terrorist attacks of September 11, 2001, are sparking another transformation for the U.S. chemical industry. Though no chemical facility was directly harmed in the 9/11 attacks, the subsequent changes occurring in the nation’s approach to homeland security and emergency preparedness are so significant that virtually every part of the cultural and economic landscape in the United States has been affected, including vital economic sectors such as the chemical industry. And with the heightened concern over weapons of mass destruction (WMD), the U.S. federal government is assuming an ever more active role in preventing, preparing for, and responding to national emergencies involving the full spectrum of WMD agents, including hazardous chemicals.
This paper describes these transformations – post Bhopal and post-9/11 – and highlights the changes that have occurred in the chemical industry’s operating practices, its relationship with society, and national public policy for preventing, preparing for, and responding to hazardous materials emergencies in the United States.
Bhopal’s Effects on the U.S. Chemical Industry
Although the disastrous loss of life at Bhopal occurred far from the United States, it immediately caused great alarm there. Union Carbide, the owner of the Bhopal facility, was an American company with similar operations in the U.S. If such a disaster could occur in India, Americans asked, why couldn’t one like it also occur here? Less than one year after Bhopal, that concern was nearly realized when an accident at the Union Carbide plant in Institute, West Virginia – a chemical plant designed similarly to the Bhopal facility - led to the release of a toxic mixture of methylene chloride and aldicarb oxime, resulting in the hospitalization of 134 people living in surrounding areas (EPA, 2000). These accidents ultimately led to a series of changes within the U.S. chemical industry - new management systems, different organizational structures, and more resources would henceforth be devoted to safely managing chemical process hazards.
The first major step taken by American industry in response to Bhopal was the formation of the Community Awareness & Emergency Response (CAER) program (Reisch, 2004). The CAER program was designed by the Chemical Manufacturers Association (CMA) to improve emergency response planning in communities near chemical facilities. Both the Bhopal accident and the accident in Institute, West Virginia had highlighted shortcomings in communities’ awareness of chemical hazards and the effectiveness of local emergency procedures. Under CAER, many companies initiated dialogue with key community stakeholders, and worked more closely with communities to coordinate emergency response training with local police, firefighters, and emergency responders. CAER also established Community Advisory Panels, comprised of plant neighbors, local leaders, emergency responders, and local educators, to address community questions about chemical companies and their operations.
Even before the development of CAER in the U.S., and before Bhopal itself, chemical manufacturers in Canada had created the “Responsible Care” program. This began as a set of guiding principles for managing chemical producers’ environment, safety, and health obligations (O’Connor, 2004). After Bhopal, The CAER program was incorporated into Responsible Care, and the program later matured into a life-cycle set of chemical hazard management guidelines designed to prevent serious chemical accidents from occurring. In 1988, U.S. members of the Chemical Manufacturers Association adopted the core Responsible Care guidelines from Canada, and made them mandatory for CMA members in the United States. In addition to CAER, the other Responsible Care codes required participating companies to practice pollution prevention, implement process safety measures, reduce hazards in the distribution, transportation, and storage of chemicals, train employees in health and safety risks, and take responsibility for a chemical product through its full life cycle of manufacturing, safe handling, distribution & sale, recycling, and disposal. The guidelines of the Responsible Care program have evolved since its inception two decades ago – the most notable recent change is the inclusion of a new Security code – but today the program continues to be a cornerstone of safety practice for the U.S. chemical industry.
Changes in U.S. Chemical Safety Legislation Following Bhopal
The Bhopal and Institute accidents also led to legislative and regulatory action in the United States. In 1985, the increasing public concern over chemical hazards led the U.S. Environmental Protection Agency (EPA) to begin its Chemical Emergency Preparedness Program (CEPP) (EPA, 1987). CEPP was a voluntary program to encourage state and local authorities to identify hazards in their areas and to plan for chemical emergency response actions. In 1986, Congress adopted many of the elements of CEPP in the Emergency Planning and Community Right-to-Know Act (EPCRA). EPCRA requires U.S. states to create State Emergency Response Commissions (SERCs) and requires local communities to form Local Emergency Planning Committees (LEPCs) to prepare local emergency response plans for chemical accidents. EPCRA also requires facilities to provide LEPCs with information necessary for emergency planning, and to submit annual inventory reports and information about hazardous chemicals at the facility to SERCs, LEPCs and local fire departments. The statute also established the Toxics Release Inventory (TRI), which requires certain facilities to annually report to EPA the quantities of their emissions of toxic chemicals. The EPCRA data are available to the public and EPA maintains a national database containing the TRI toxic chemical release reports.
As its name suggests, EPCRA promotes hazard information sharing and emergency planning. However, EPCRA does not require facilities to take any actions to prevent chemical accidents from occurring. Instead, EPCRA directed EPA to conduct a review of emergency systems to monitor, detect, and prevent chemical accidents, and to identify gaps in federal regulations. EPA initiated the Accidental Release Information Program (ARIP) to collect information related to chemical accidents and their causes. Serious chemical accidents continued to occur in the U.S. throughout the late 1980s, and in 1990, information from these accidents prompted Congress to incorporate two new regulatory programs into the Clean Air Act (CAA).
Section 304 of the CAA Amendments of 1990 required the Occupational Safety and Health Administration (OSHA) to develop chemical accident prevention and emergency response regulations to protect workers at hazardous chemical facilities. OSHA responded by developing the Process Safety Management (PSM) standard (29 CFR Part 1910), which places accident prevention and emergency response requirements on facilities having specified hazardous chemicals above certain threshold quantities. The PSM standard went into effect in 1992.
Section 112(r) of the amended CAA also called for EPA to develop regulations to prevent and respond to chemical facility accidents that could affect the public and environment off-site. In 1996, EPA promulgated the Risk Management Program regulations (40 CFR Part 68). The Risk Management Program is similar to OSHA’s PSM standard, covering many of the same toxic and flammable chemical substances, and requiring a similar set of accident prevention requirements. These requirements include using written operating procedures, providing employee training, ensuring ongoing mechanical integrity of equipment, analyzing and controlling process hazards, and the like. The OSHA PSM standard and the EPA Risk Management Program were the first U.S. Federal regulations specifically designed to prevent major chemical accidents that could harm workers, the public and the environment.
Although the accident prevention program requirements of the OSHA PSM standard and EPA Risk Management Program are similar, the EPA program contains a number of additional requirements that go beyond the PSM standard. These include:
· Facilities must prepare a history of accidental releases occurring over the past five-years.
· Facilities must perform an Offsite Consequence Analysis (OCA) - an analytical estimate of the potential consequences to the public and environment around the facility of hypothetical worst case and alternative accidental release scenarios.
· Facilities must submit a summary report, called a Risk Management Plan (RMP), to the EPA. The RMP contains the facility’s five-year accident history, a summary of its accidental release prevention program, its offsite consequence analysis, and a summary of its emergency response plan. The CAA requires EPA to make all RMPs available to state and local governments and the public, although it also authorizes restrictions on access to the offsite consequence analysis portion of the plan. Facilities must update their RMP at least every five years, or more frequently when certain changes occur.
The Risk Management Program regulation went into effect in 1999, and EPA received RMPs from approximately 15,000 U.S. chemical facilities. The majority of these were submitted in electronic format, enabling EPA to construct a relational database, called RMP*Info, containing the plans. Today, RMP*Info is probably the most comprehensive database on chemical facility hazards in existence.
Without the benefit of the data contained in RMP*Info, one might assume that major chemical hazards are largely confined to those facilities that manufacture industrial chemicals. But the RMP*Info data make it readily apparent that chemical manufacturing facilities are just one end of a wide spectrum of facility types that contain large quantities of hazardous chemicals. Industrial categories with the largest number of facilities reporting RMPs to EPA are listed in Table 1. As this table indicates, industrial categories such as farm supply wholesalers, water supply and irrigation, wastewater treatment, and refrigerated warehousing and storage have the largest numbers of RMP facilities.
The Debate over Public Right-to-Know
In 1996, in anticipation of receiving thousands of RMPs, EPA commissioned a Federal Advisory Committee workgroup to study the issues related to creating an electronic database of RMPs, and making that database available to the public (EPA, 2000). That group recommended that EPA make most RMP information available to the public via the Internet. EPA favored this approach because it anticipated that hazardous chemical information, if conveniently available to the public in an easily understandable format, would be used by various sectors of the public to influence facility behavior to a greater extent than the regulatory requirements alone. This approach had been successful with implementation of the earlier EPCRA legislation.
However, some members of the advisory group, along with chemical industry and federal security agency representatives, raised concerns about public access to “Offsite Consequence Analysis” (OCA) information contained in RMPs. OCA information is the portion of an RMP detailing hypothetical estimates of worst-case and alternative release scenarios from chemical facilities. The main concern was that providing easy, anonymous access to this information via the Internet would allow criminals or terrorists to misuse the information in order to target facilities for attack.
To address these concerns, in August 1999, Congress passed the Chemical Safety Information, Site Security, and Fuels Regulatory Relief Act. This law attempted to strike a balance between competing concerns, by authorizing restrictions on public access to the portions of RMPs containing OCA information, while still guaranteeing that any member of the public could obtain access to that information for at least a limited number of facilities. Under the law, EPA and the Department of Justice (DOJ) jointly published regulations in August 2000 (40 CFR Chapter IV) allowing public access to paper copies of the OCA information sections of RMPs only in designated Federal “reading rooms.” EPA and DOJ established approximately 50 OCA information reading rooms nationwide. At a reading room, a member of the public may view paper copies of the OCA information sections of RMPs for all regulated facilities in the person’s locality, and view up to 10 OCA information sections per month for regulated facilities nationwide. The regulations also allow full access to the OCA information sections of RMPs by federal, state, and local government officials, but prohibit these officials from disclosing those sections to the public except through state and local reading rooms meeting federal requirements.
The Effects of 9/11
The United States had experienced terrorist attacks against its interests abroad and on U.S. soil prior to September 11, 2001. Some of these had resulted in significant numbers of deaths and injuries. Terrorists destroyed the U.S. Marine barracks in Lebanon in 1983, killing 241. In 1998, terrorists bombed U.S. embassies in Tanzania and Kenya, killing 224, including twelve Americans. The U.S.S. Cole, a U.S. Navy frigate, was attacked in October 2000, in the port of Aden, Yemen, killing 17. Domestically, terrorists had already bombed the World Trade Center once in 1993, killing 5 and injuring more than 600. In 1995, the bombing of the Oklahoma City federal building caused more deaths (168) than any prior act of terrorism on U.S. soil (DOJ, 2000). But none of these events approached the scale and severity, or had the numerous and lasting effects on American society, of the coordinated attacks that occurred on September 11, 2001.